IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

GEORGE MOORE,

Plaintiff,

vs. Civil Action 2:11-CV-132

Judge Watson

Magistrate Judge King

WARDEN, PICKAWAY CORRECTIONAL

INSTITUTION, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, a state inmate proceeding without the assistance of

counsel, brings this action under 42 U.S.C. § 1983,1 alleging that

defendants deprived him of medication and food in violation of his

rights under the Eighth Amendment to the United States Constitution. 

This matter is before the Court on plaintiff’s Request for Temporary

Restraining Order, Doc. No. 33 (“Plaintiff’s Motion”). For the

reasons that follow, it is RECOMMENDED that Plaintiff’s Motion be

DENIED.

I. BACKGROUND

Plaintiff, currently incarcerated at Pickaway Correctional

Institution (“PCI”), alleges that he is medically and physically

handicapped. Amended Complaint, Doc. No. 9.2 Plaintiff specifically

alleges that he suffers from various types of cancer and degenerative

1

Although plaintiff filed this action on a form habeas corpus petition

under 28 U.S.C. § 2254, Doc. No. 1, the Court construed the action as being

brought pursuant to Section 1983. Order of Transfer, Doc. No. 2.

2

The Amended Complaint is verified.

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bone disease and that he suffered strokes in 2006 and in 2009 and a

heart attack in 2010. Id. at ¶¶ B, C. As a result, plaintiff “has

very limited mobility and is wheelchair bound (has been for several

years).” Id. 

In May 2010, plaintiff requested that his medications be renewed,

but was advised that a Dr. Enzeke had cancelled all of plaintiff’s

medications. Id. at ¶ E. On May 29, 2010, plaintiff was transported,

unconscious, to The Ohio State University (“OSU”) emergency room. Id. 

Plaintiff awoke to “terrible pain” and bruising in his extremities,

which he alleges “was caused by pinching to make me respond.” Id. 

His chest and nipples were bruised as well, allegedly because of

“Dutch Rubs.” Id.

During plaintiff’s stay at the hospital in May 2010, procedures

involving a heart stent and catheter caused him to contract

cellulitis; contrary to OSU hospital policy, however, he did not

receive treatment for the infection until he “was discharged to the

Corrections Medical Center.” Id. In addition, plaintiff alleges, Dr.

Enzeke advised an OSU physician that plaintiff “was old and senile and

had forgotten to take the medication” previously prescribed to him. 

Id. 

On August 30, 2010, Dr. Awan prescribed two types of medication

for plaintiff: Ultram for back pain associated with plaintiff’s

degenerative bone disease and Nitroglycerine because of plaintiff’s

cardiac condition. Id. at ¶ D. On September 8, 2010, “the [PCI]

nurse refused to give” plaintiff his medicine because “there was no

prescriptions.” Id. After again requesting and being denied the

medication, plaintiff saw the head nurse who gave plaintiff the

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Nitroglycerine “but stated the Ultram would have to be picked up at

the pill window. When pill time came the pill nurse again refused the

medication.” Id. A dispute arose and, once the medical record was

verified, plaintiff “was placed in the hospital but was given

commissary restriction for cursing the nurse.” Id. Plaintiff alleges

that he was denied these two medications from September 8 through

September 16, 2010. Id. 

On January 7, 2011, plaintiff alleges, PCI Sergeant Justice “took

my ID badge as punishment for a minor infraction because he knew I

would not be able to obtain meals” without the badge. Id. After

plaintiff filed an informal complaint about this incident, he alleges,

“I was set up by a cohort of Sgt. Justice’s on a phony drug charge[.]” 

Id. Following a hearing before the Rules Infraction Board (“RIB”),

plaintiff was found guilty of possession and sale of Ultram. Id. His

prescription for Ultram was discontinued. Id. 

On February 7, 2011, plaintiff filed the original Complaint,

naming as defendants PCI Warden Cook and Ernie Moore, Director of the

Ohio Department of Rehabilitation and Corrections (“ODRC”). Doc. No.

1.3 On April 19, 2011, prior to any response to the original

Complaint, plaintiff filed the Amended Complaint which alleges that

defendants knowingly deprived him of medicine and food in violation of

his rights under the Eighth Amendment. Plaintiff seeks injunctive and

monetary relief. Amended Complaint, p. 6. 

Plaintiff’s Motion alleges:

3

Plaintiff originally filed this action in the Western Division of this

district. Id. The case was transferred to this Court on February 14, 2011. 

Order of Transfer, Doc. No. 2.

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Violations of witholding [sic] medicine for punitive cause

continues at the whim of whoever wants to do while

Administrative Staff who do not order the persons to withold

[sic] the medicine conviently [sic] looks the other way and

allows this unlawful behavior of officer and medical staff

thereby condoning the fact.

Id. at 1. Plaintiff further alleges that he “is not a cripple because

of his medical condition the plaintiff is a cripple because the

Department of Corrections has ‘made’ him a cripple and continues to

use his medical condition as a means to punish him.” Id. Plaintiff

seeks an order compelling defendant PCI Warden Cook “to institute

command of officers and medical staff of Pickaway Correctional

Institution and forbid officers and medical staff from interfearing

[sic] with the dispensing of medical care lawfully prescribed by a

medical doctor[.]” Id. at 1-2. Defendants oppose Plaintiff’s Motion. 

Defendants’ Response in Opposition to Plaintiff’s Motion for a

Temporary Restraining Order (“TRO”), Doc. No. 35 (“Memo. in Opp.”). 

With the filing of plaintiff’s reply memorandum, Reply Memorandum in

Support of Request for TRO, Doc. No. 39 (“Reply”), this matter is now

ripe for resolution.4

II. STANDARD

Rule 65 of the Federal Rules of Civil Procedure permits a party

to seek injunctive relief if he believes that he will suffer

irreparable harm or injury without such relief. Fed. R. Civ. P. 65(a)

and (b). A temporary restraining order relates only to restraints

4

Because this motion can be resolved on the parties’ filings, there is

no need for an evidentiary hearing. See Potter v. Havlicek, No. 3:06-cv-211,

2007 U.S. Dist. LEXIS 10677, at *10 (S.D. Ohio Feb. 14, 2007) (“A hearing is

not always necessary on a motion for a preliminary injunction.”) (citing,

inter alia, 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure, § 2949).

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sought without written or oral notice to the adverse party or his

attorney, whereas the application is properly treated as one for a

preliminary injunction where the adverse party has been given notice. 

Id.; Rios v. Blackwell, 345 F. Supp.2d 833, 835 (N.D. Ohio 2004) (“As

long as there is notice to the other side and an opportunity to be

heard, the standard for a preliminary injunction is the same as that

for a temporary restraining order.”). 

“The purpose of a preliminary injunction is always to prevent

irreparable injury so as to preserve the court’s ability to render a

meaningful decision on the merits.” United Food & Commer. Workers

Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth., 163 F.3d 341,

348 (6th Cir. 1998) (quoting Stenberg v. Cheker Oil Co., 573 F.2d 921,

925 (6th Cir. 1978) (internal quotation marks omitted)). The decision

whether or not to grant a request for interim injunctive relief falls

within the sound discretion of the district court. Friendship

Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 102 (6th Cir.

1982). An injunction, however, is an extraordinary remedy that should

be granted only after the Court has considered the following four

factors:

(1) whether the movant has a “strong” likelihood of success

on the merits; (2) whether the movant would otherwise suffer

irreparable injury; (3) whether issuance of a preliminary

injunction would cause substantial harm to others; and (4)

whether the public interest would be served by issuance of a

preliminary injunction.

Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000) (citing

McPherson v. Michigan High Sch. Athletic Ass’n, 119 F.3d 453, 459 (6th

Cir. 1997) (en banc)) (quoting Sandison v. Michigan High Sch. Athletic

Ass’n, 64 F.3d 1026, 1030 (6th Cir. 1995)). These four considerations

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need not all be met but are rather factors to be balanced. In re

DeLorean Motor Co., 755 F.2d at 1229; Michigan Bell Tel. Co. v.

Engler, 257 F.3d 587, 592 (6th Cir. 2001). “Moreover, a district

court is not required to make specific findings concerning each of the

four factors used in determining a motion for preliminary injunction

if fewer factors are dispositive of the issue.” Jones v. City of

Monroe, 341 F.3d 474, 476 (6th Cir. 2003). Finally, the movant bears

the burden of establishing that “the circumstances clearly demand”

this extraordinary remedy. Overstreet v. Lexington-Fayette Urban

County Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). 

III. DISCUSSION

Plaintiff has named as defendants only PCI Warden Cook and ODRC

Director Moore, but he has not indicated whether he is suing them in

their official or individual capacities. See generally Amended

Complaint. However, construing plaintiff’s Amended Complaint

liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), the

Court will presume that plaintiff is suing defendants in both their

individual and official capacities. 

Plaintiff has not demonstrated a likelihood of success on the

merits as to the claims against defendants in their individual

capacities. “Because § 1983 liability cannot be imposed under a

theory of respondeat superior, proof of personal involvement is

required for a supervisor to incur personal liability.” Grinter v.

Knight, 532 F.3d 567, 575 (6th Cir. 2008) (quoting Miller v. Calhoun

County, 408 F.3d 803, 817 n.3 (6th Cir. 2005) (internal quotation

marks omitted)). “At a minimum, a § 1983 plaintiff must show that a

supervisory official at least implicitly authorized, approved or

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knowingly acquiesced in the unconstitutional conduct of the offending

subordinate.” Id. (quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th

Cir. 1984) (internal quotation marks omitted)). Thus, liability on

the part of a supervisor must be based on “active unconstitutional

behavior.” Combs v. Wilkinson, 315 F.3d 548, 554 (6th Cir. 2002)

(citing Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)). Here,

plaintiff does not allege that defendants PCI Warden Cook and ODRC

Director Moore personally withheld medication and/or food from

plaintiff. Instead, plaintiff complains that it was unidentified

“employees of PCI,” “Officer Jacko,” “Officer Bryum,” “Nurse Cindy,”

“[t]he Governor of the State of Ohio,” unidentified “officers and

medical personell [sic]” and an unidentified nurse who withheld

medication and/or food in the past. See Plaintiff’s Motion; Reply,

pp. 1-2, 4; Amended Complaint, ¶ D. These allegations, devoid of any

factual support or even a suggestion that the named defendants

personally withheld medicine or food – or authorized the withholding

of medicine or food from plaintiff – are insufficient to establish the

necessary active unconstitutional behavior. See Combs, 315 F.3d at

554.

As to the official capacity claims against the named defendants,

such claims are the equivalent of claims brought against a

governmental entity itself. Will v. Mich. Dep’t of State Police, 491

U.S. 58, 71 (1989) (“But a suit against a state official in his or her

official capacity is not a suit against the official but rather is a

suit against the official's office.”); Kentucky v. Graham, 473 U.S.

159, 165-66 (1985). Under Monell v. Department of Social Services,

436 U.S. 658 (1978), a governmental entity cannot be held liable under

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§ 1983 on a theory of respondeat superior simply because its employees

may have engaged in unconstitutional conduct. Id. at 691. Rather, a

plaintiff seeking to prevail in a § 1983 suit against a governmental

entity must first prove, of course, that a constitutional violation

actually occurred, and then prove that it was a policy or custom of

the governmental entity that was the “moving force” behind the

constitutional violation. Id. at 694. Such a policy or custom may

consist of: “(1) the [governmental entity’s] legislative enactments or

official agency policies; (2) actions taken by officials with final

decision-making authority; (3) a policy of inadequate training or

supervision; or (4) a custom of tolerance of or acquiescence in

federal rights violations.” Thomas v. City of Chattanooga, 398 F.3d

426, 429 (6th Cir. 2005). The allegations in the verified Amended

Complaint relate only to a handful of instances involving only

plaintiff. Under these circumstances, plaintiff has not identified or

alleged any unconstitutional policy or custom on the part of either

the ODRC or the State of Ohio. Based on the present record, plaintiff

has not shown a likelihood of success on the merits as to his official

capacity claims. Id. 

Similarly, plaintiff has not demonstrated irreparable harm. To

establish irreparable harm, plaintiff must show that unless his motion

is granted, he “will suffer ‘actual and imminent’ harm rather than

harm that is speculative or unsubstantiated.” Abney v. Amgen, Inc.,

443 F.3d 540, 552 (6th Cir. 2006). Here, as defendants point out,

Plaintiff’s Motion contains no factual averments and does not even

reference the factors that must be considered by the Court in issuing

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extraordinary injunctive relief, including irreparable injury.5 The

Reply6 simply alleges that “Officer Jacko and Nurse Cindy have upon

several incidents since the filing of Case No. 2:11cv132 stopped the

8-1 pill line which denied medication for serious medical need to

plaintiff, they are not the only ones to have done this.” Reply, p.

1. Plaintiff further contends that “Officer Bryum (Frazier Hosp) has

caused plaintiff to miss meals to obtain medication since the filing

[of this litigation].” Id. Likewise, the Amended Complaint simply

refers to alleged misconduct by an unidentified nurse and a “Sgt.

Justice.” Amended Complaint, ¶ D. Taken together, plaintiff simply 

complains of occasional, past incidents in which persons who are not

parties to the action allegedly failed to provide medication or food

to plaintiff. Plaintiff makes no specific allegation, nor does he

provide evidence, that defendants themselves will engage in

unconstitutional behavior in the future. Plaintiff has therefore 

failed to establish harm that is “actual and imminent.” Stated

differently, any suggestion that defendants PCI Warden Cook and ODRC

Director Moore might either personally withhold prescribed medication

or food, or authorize such misconduct, in the future is simply

speculative.7 As discussed supra, such speculation is insufficient to

5

To the extent that plaintiff argues, without factual support, that ODRC

“‘made’ him a cripple,” Plaintiff’s Motion, p. 1, this allegation is

undermined by the verified Amended Complaint, which avers that plaintiff has

been wheelchair bound for several years as a result of his degenerative bone

disease and heart attack in 2010. Amended Complaint, ¶¶ B, C, D.

6

Plaintiff provides no evidentiary support for his allegations in the

Reply, but the Court will nevertheless assume, for purposes of this

discussion, that they are true.

7

To the extent that plaintiff may suggest that the medication Ultram

will be withheld from him in the future, the Court is not persuaded that such

withholding warrants injunctive relief. First, not only is there no evidence

that the named defendants would either actually or by authorization withhold

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warrant extraordinary injunctive relief. See Abney, 443 F.3d at 552. 

In light of the Court’s decision as to these factors, the Court

need not consider whether the remaining factors support a request for

injunctive relief. See Jones, 341 F.3d at 476. Based on the present

record, plaintiff has not met the high standard necessary for

extraordinary injunctive relief. It is therefore RECOMMENDED that

plaintiff’s Request for Temporary Restraining Order, Doc. No. 33, be

DENIED.

If any party seeks review by the District Judge of this Report

and Recommendation, that party may, within fourteen (14) days, file

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part

thereof in question, as well as the basis for objection thereto. 28

U.S.C. §636(b)(1); F.R. Civ. P. 72(b). Response to objections must be

filed within fourteen (14) days after being served with a copy

thereof. F.R. Civ. P. 72(b). 

The parties are specifically advised that failure to object to

the Report and Recommendation will result in a waiver of the right to

de novo review by the District Judge and of the right to appeal the

decision of the District Court adopting the Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation

of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United

States v. Walters, 638 F.2d 947 (6th Cir. 1981).

such medication, plaintiff concedes that, since his RIB hearing, he no longer

has a prescription for that medication. See Amended Complaint, ¶ D. Second,

although plaintiff may now disagree with the decision to terminate his

prescription for Ultram, plaintiff does not explain how that disagreement with

a decision in January 2011, eight months ago, now amounts to irreparable harm

in the future.

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September 20, 2011 s/Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

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